3:28 DEFINITION OF HAY. 



rent. There is no absolute covenant that lie will not do it. If that is 

 the true construction of the document, then undoubtedly the declara- 

 tion ought to have alleged that increased rent, and though the time for 

 payment arrived, that it had not been paid. * * It seems to me 

 that Hio\sl V. Hi'ist (4 Ex. 571, 19 L.J. (N.S.) Ex. 401) was well 

 decided on principle, and that it is distinguishable from this case. In 

 If tost V. Iliirsl the Court says the meaning of the covenant is, " You 

 shall not lop the trees ; further, if you do you shall pay £20." If the 

 covenantee think fit to avail himself of it, then the consequence is there 

 may be a good breach of the original covenant : therefore the declaration 

 is a good one. But the Court came to that conclusion on the ground 

 that there were two covenants there ; one an absolute one — not to cut 

 the trees, and the other an absolute one — to pay liquidated damages if 

 he did so. But we decide this case on the ground that this is not so 

 here. There is no covenant that the defendant will not remove the 

 manure, but a covenant that he will not do it without paying £10 ; in 

 fact, there is only one covenant, which is a complex covenant that he 

 shall pay £10 if he remove it. It seems to me in this case, the plaintiff 

 can only recover the agreed £10, that he is not entitled to claim un- 

 liquidated damages, and consequently he ought in the declaration to 

 have shown he^is entitled to £10 per ton, and made a good breach as to 

 its non-]jayraent ; and in that case the declaration would be good ; not 

 having done so, it is bad, and is distinguishable from Hurst v. Hurst 

 on the ground I have named." 



" Hay " ill farming lease includes haij not fit for fodder. — Where it 

 was coA'enanted in a farming lease that an additional rent of £10 per 

 ton should be payable " if hay, straw, or other dry fodder " should be 

 sold and taken off from the farm, and hay had been taken off by the 

 defendant which was not fit for food, it was held by the Court of Ex- 

 chequer that such damaged hay was still within the meaning of the 

 covenant, which implied that everything grown on the farm should 

 remain and be used there (Fielden v. Taitersalt). 



Construction of drainage covenant in lease. — An agricultural lease 

 contained a covenant on the part of the lessor, his heirs, &c., that he 

 and they would " drain with proper drain-tiles, one rood apart, ten 

 acres of the land now in rye grass, at his and their costs, except the 

 caiTiage of the said drain-pipes, which is to be borne and paid by the 

 lessee ; and will drain tlie remainder of the lands hereby demised, in 

 manner aforesaid, upon being paid a further yearly rent of £5 for every 

 £100 60 expended." It was held by the Court of Common Bench, 

 that the words " in manner aforesaid " referred only to the mode of 

 performing the work, viz., placing the drain-tiles one rood apart ; and 



